The political commentator Ian Birrell writes well, though not often about Scottish affairs. But last week he was all over us, lauding our penal policies and comparing them favourably with the 'shocking chaos of a broken system' south of the border. 'Scotland is showing a profound stance on criminal justice: politicians displaying genuine leadership and standing firm against synthetic outrage to improve society,' he wrote. 'Sadly, it is so rare it seems almost hallucinatory.'
I have news for Mr Birrell. He has indeed been hallucinating. Yet his misguided song of praise was promptly picked up by The Week, a digest of the 'best' of the British and international press, without any obvious sign that it had been independently fact-checked. In such casual ways, wisdom becomes received.
The basis of Mr Birrell's original article is the 'presumption' against short prison sentences introduced by the SNP administration in its Criminal Justice and Licensing (Scotland) Act of 2010, which requires the court to (1) only pass a sentence of three months or less if no other appropriate disposal is available; and (2) record the reason for this view.
There seemed to be no doubt in Mr Birrell's mind that the 'presumption' had been duly observed by the courts, and he went on to commend the Scottish government for its plan 'to go much further' by extending the provisions of the legislation to sentences of 12 months or less. He quoted with approval a statement of Nicola Sturgeon that 'we must be even bolder in our efforts to keep people out of prison' – again no suggestion that the 'presumption' had been other than an unqualified triumph.
Well, that’s politics. But then there's the reality: what is going on, day after day, in the criminal courts of Scotland. Here we find a rather different picture.
The briefest trawl of the internet was sufficient to reveal that the 'presumption' against short prison sentences is routinely ignored by sheriffs. Recent court records are full of stories of offenders going down for three months or less. Here are just a few examples plucked at random from a variety of courts around the country:
, 24, jailed for two months for assaulting his girlfriend and behaving in a racially aggravated manner towards a police officer.
, 34, jailed for three months for stealing some clothes from a department store.
, 48, jailed for three months for breaking into a Victorian market. He told the court he had done it because he had no money and wished to be arrested: 'Committing an offence to get back inside was my only option.' (Was there no better reason for sending this offender to prison than that he wanted to go?)
, 34, jailed for two months after being caught with 12,000 counterfeit cigarettes branded 'Mayfair' and a large quantity of tobacco.
, 40, jailed for three months for stealing pens worth £100 from a newsagent's. He explained that he had 'missed his foodbank' and needed to sell the pens to raise cash.
I could name others from the recent past. But perhaps these examples are enough to show that it is one thing to introduce a presumption against short prison sentences and quite another to persuade the courts to implement it.
And where is the evidence that the courts are abiding by the second stipulation of the 2010 law and publicly recording their reasons? Local court reporting is a disgrace and no great reliance should be placed on it – but I could find no explanation of why these five men had gone to prison in preference to the politically approved non-custodial alternative.
Having looked at individual cases, I went to the official statistics in an attempt to discover how many offenders are serving short sentences on an average day in Scotland's penal establishments. But here I encountered two unexpected difficulties. First, the statistics are not set out in a way that allows interested parties like myself to make any sense of them. There is a category for sentences of less than three months; there is a category for sentences of between three months and six months. But there is no category for sentences of three months or less: the period actually defined by the law.
Regrettably, then, I can't give you the figures. But I couldn't have given you them anyway – because the data from 2014 onwards 'has been affected by a technical issue' and isn't available.
I am, however, able to provide more general information in support of the progressive penal policy theory keenly espoused by Ms Sturgeon, Mr Birrell, and such passive conduits of intelligence as The Week. In 2000, the average daily prison population in Scotland was 5,869; 16 years later, it was 7,611. Sorry if this isn't exactly helping the progressive penal policy theory. It's just how it is.
Next I sought the assistance of that impeccable source, World Prison Brief, to see how Scotland compares with other countries in western Europe. How many people are they – and we – locking up per 100,000 of the population?
Here are the results of that study:
(out of every 100,000)
The Netherlands, 59
Northern Ireland, 76
England and Wales, 143
Nicola Sturgeon thinks we're doing a grand job keeping people out of prison and is so effective a propagandist that she has persuaded a leading member of the English commentariat that she knows what she's talking about. And it's true: 18th out of a league table of 19 could be worse. England's worse. Though not by much. But the idea that we are some beacon of penal enlightenment is pure myth-making. After eight years, we have succeeded in increasing the number of non-custodial sentences to the point where our jails are not officially overcrowded (only 97% occupancy at the last count). It has left the Scottish taste for banging people up only slightly diluted.
The Scottish Sentencing Council – I'm looking at you, Lady Dorrian – has a role here. It could inquire into the statistical aberrations which impede public knowledge of an important aspect of sentencing. It could tell us why courts are still sending people to prison for three months or less despite a law which presumes that they aren't. It could seek a public account from the presiding sheriffs of why they did not consider an alternative sanction appropriate in the five recent cases I have highlighted for illustrative purposes. And it could give a frank assessment of the practicability (to say nothing of the desirability) of extending the scheme to sentences of 12 months or less when the original scheme clearly isn't working properly.
Meanwhile, I hope that Ian Birrell makes a full recovery from his hallucinatory fantasy about Scotland.